Paul L. Caron

Friday, November 4, 2016

Volokh:  Oregon Law Profs' Attempt To End Colleague's Career Over Halloween Blackface Costume Marks 'Dangerous Place In American University Life'

Oregon 2

The Washington Post (Volokh Conspiracy): Oregon Law Professors Call for Colleague to Resign for ‘Black Man in a White Coat’ Halloween Costume, by Eugene Volokh (UCLA):

Paul Caron (Tax Prof Blog) has the story; see also here. My view: There’s nothing inherently racist about using dress or makeup to pretend to be black, or white, or Hasidic, or what have you. Indeed, if someone wore blackface and imitated an accent in a way that mocked blacks, she could be faulted for mocking blacks (just as somehow dressing up as an Orthodox Jew to mock Orthodox Jews could be faulted for that). But the notion that making oneself up to look black is just somehow per se racist strikes me as very hard to defend, whether one is trying to play President Obama (or, for that matter, Othello) or the title character in a black doctor’s memoir (“Black Man in a White Coat,” which is apparently what the professor was dressing as) or Michael Jackson. ...

Nor am I influenced by the notion that the professor should resign because her decision shows “poor judgment” because she should have known that this would be offensive. ... We rightly wouldn’t countenance calls for someone to resign because they wore something at a party, or said something at a party, that, say, veterans or evangelical Christians would have found offensive. I think that people wearing Che Guevara shirts are displaying abominable judgment, but that’s no basis for pressuring them to resign or for launching university investigations (which is indeed happening here). ...

[T]his sort of social give-and-take is nothing like the demands for ending people’s professional careers. ... We have reached a bad and dangerous place in American life, and in American university life in particular.

Register-Guard editorial, No Place for Blackface:

Defenders of University of Oregon law professor Nancy Shurtz will point to the context of her Halloween costume: She attended a private party dressed as Dr. Damon Tweedy, author of Black Man in a White Coat: A Doctor’s Reflections on Race and Medicine. Plainly, Schurtz did not intend to make any kind of racist statement by donning blackface as part of her costume.

But just as plainly, there’s another context to consider: the context of a mainly white university that is struggling to make black students and faculty feel welcome, and the context of a long history of racist stereotypes communicated by blackface. At some point in the planning of her Halloween costume, Shurtz should have stopped to say, “Wait a minute — this is not a good idea.” The fact that she didn’t reveals a thickheaded cultural illiteracy, not just in Shurtz but in her social and academic milieu. ...

[W]hat the UO needs is not one fewer law professor, but more understanding. Shurtz’s experience offers an opportunity to explore the lines between self-expression and hurtful messaging, between cluelessness and consideration, between privilege and vulnerability. A university exists to teach students how to think, not what to think — and here’s a chance to do just that.

Daily Caller, Oregon Professor Suspended For Wearing Blackface On Halloween:

Ironically, Shurtz previously served as the chairwoman of the law school’s diversity committee.

Inside Higher Ed, Punishing a Professor for Blackface:

If Shurtz does not resign, some legal experts believe her actions -- however foolish -- are in fact protected by the First Amendment.

"Simply dressing in blackface or as an African-American at a party is indeed constitutionally protected expression that UO, a government agency, cannot punish," said Robert L. Shibley, executive director of the Foundation for Individual Rights in Education. He cited a 1993 decision by a federal appeals court to block George Mason University from punishing a fraternity that held "an ugly woman contest" fund-raiser in which some fraternity members posed as caricatures of black women. The appeals court found that this event, however offensive, was protected by the First Amendment. "If such a skit is protected expression, this professor's expression surely is as well," Shibley said.

John K. Wilson, an independent scholar who writes regularly about academic freedom issues, agreed. Via email, he said, "When dealing with an extramural activity, there's generally no valid punishment unless it shows incompetence in doing their work. That obviously doesn't apply in this case. There's no reason why wearing an offensive costume makes you a bad law professor."

Michael Dreiling is a professor of sociology at Oregon who is president of United Academics, the faculty union at the university, an affiliate of the American Association of University Professors and the American Federation of Teachers. Via email, he said, "Blackfacing is not only negligent, but hurtful, regardless of intentions. Even as we condemn blackfacing for the racist history the action evokes, we believe all faculty are entitled to a fair investigation and due process. We hope the university will recognize and respect these important rights in this case."

Legal Education | Permalink


Any dark skinned person offended by the mere fact that she darkened her skin, would be a truly shallow human being.
Many dark skinned people lighten their faces with makeup, and they too should not be made to feel ashamed for doing so, as it may be interpreted by albino people to equally as offensive.
Where ever a made up person goes, there will be a risk of meeting artificially offended people. It's a risk they take, and is no business of anybody else, unless or until it triggers a genuine offense, like assault. Then it can become a matter for others to be involved in, such as a court.
Likewise if a white man wears a black condom, he too assumes the risk associated with doing so.

Posted by: WayneRoyce | Nov 5, 2016 1:56:07 AM

1) Volokh demonstrates his ignorance of American culture and history when he concludes that a white person dressing up in blackface is not racist. Of course it is, even when done with some other stated intent which was the case here. There is nothing “amusing” about her behavior. And there is no rational comparison to be made between this act and someone who imitates a person of another gender or religion in the manner he suggests (though there are likely limited exceptions in that category that might have that impact).

2) But it is not fair to suggest that Volokh’s post concluded that the call by her colleagues to resign was an attempt to end her career as the TaxProf headline mistakenly suggests. I don’t see that conclusion in his post.

3) Volokh, to his credit, likely understands that this act – as stupid and obnoxious as it was – was a classic form of extramural speech protected by AAUP principles and University of Oregon rules and it cannot be the basis of disciplining this faculty member. Even the suspension she is under now violates standards of academic freedom.

4) This does not mean there should not be a vigorous response by the institution to this troubling behavior but this act alone cannot and should not be the basis for an impingement on the faculty member’s right to teach and conduct research.

Posted by: Steve Diamond | Nov 4, 2016 9:41:05 AM

It's like stalinism and Jacobinism and the rest. These radical left wing movements eventually eat their own. This woman seems to have been a card carrying member SJW attempting to put on a social justice themed protest for moar diversity. Insane of course, but now they are going to personally destroy her life in attempt to virtue signal their righteousness and lack of sin. It's a disgusting human characteristic.

Posted by: Hotdog | Nov 4, 2016 9:15:44 AM

"One day you will need the same grace that you will not give to someone else." Matt Wade.

Posted by: Not Throwing Stones | Nov 4, 2016 7:53:05 AM

Snowflake generators run academia.

Posted by: Cedric | Nov 4, 2016 7:16:04 AM

The notion that one must examine context and intention when evaluating the morality or propriety of conduct is so passe.

Posted by: Mike Petrik | Nov 4, 2016 6:43:20 AM

Based on the picture, instead of going down the makeup aisle, this professor tried to audition for a minstrel show. She was not ignorant or trying to be the "black man in a white coat," she was trying to be offensive. She doesn’t deserve the title of law professor if she thinks that this thinly veiled excuse is a good argument for her behavior off campus.

If she said that her goal for Halloween was to be offensive, then that is a different matter entirely.

Same rules apply to someone who dresses up on Halloween with a toothbrush mustache and a comb over.

A duck is a duck.

Posted by: Can't Take Volokh Seriously | Nov 4, 2016 6:05:03 AM

They shouldn't resign but they should def. apologize.

Posted by: mike livingston | Nov 4, 2016 4:07:47 AM

Forget racist implication. How about maybe just flucking nuts?

Posted by: Diogenes | Nov 4, 2016 4:02:48 AM